IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 17, 2005

ANDRE L. MAYFIELD v. HOWARD CARLTON & STATE OF

TENNESSEE

Appeal from the Criminal Court for Johnson County

No. 4434 Robert E. Cupp, Judge

No. E2005-00138-CCA-R3-HC - Filed July 29, 2005

The petitioner, Andre L. Mayfield, filed a petition for writ of habeas corpus arguing that: (1) he was

improperly considered as a multiple rapist; (2) the trial court lacked the authority to sentence the

petitioner as a multiple rapist without an indictment charging him as such; (3) the trial court lacked

authority to modify the petitioner’s original sentence; (4) the trial court failed to expressly state how

the sentence in count five (5) would run; (5) the trial court improperly filled out the judgment form

for count four (4); and (6) the judgment forms indicating that the petitioner was sentenced as a

multiple offender with a release eligibility of thirty-five percent (35%) are improper. The trial court

denied the petition. The petitioner appeals. For the following reasons, we affirm the judgment of

the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.

WOODALL, JJ., joined.

Andre L. Mayfield, Pro Se, Mountain City, Tennessee.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General and

Joe Crumley, District Attorney General for the appellee, State of Tennessee.

OPINION

Factual Background

On July 15, 1993, the petitioner pled guilty to three (3) counts of aggravated rape and one

(1) count of aggravated robbery. As a result of the plea agreement, the petitioner was sentenced to

concurrent terms of twenty (20) years for each aggravated rape conviction and ten (10) years for the
The technical record also includes a copy of a previous petition for writ of habeas corpus filed by the petitioner

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on April 22, 2004, in case number 4385.

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aggravated robbery conviction, for an effective sentence of twenty (20) years as a Range I standard

offender with a release eligibility of thirty percent (30%). 

On March 15, 1999, the petitioner filed a motion to withdraw his guilty plea. In that motion,

the petitioner argued that because he was classified by the Tennessee Department of Correction as

a multiple rapist, his release eligibility was changed from thirty percent (30%) to one hundred

percent (100%) in violation of his plea agreement and, therefore, his plea was ineffective. The trial

court allowed the petitioner to withdraw his plea agreement. 

In June of 1999, the petitioner was tried by a Davidson County jury and found guilty of

aggravated robbery, aggravated rape, rape and two (2) counts of aggravated kidnapping for crimes

perpetrated on two (2) victims. As a result, he was sentenced to an effective term of fifty (50) years

as a multiple rapist and multiple offender. The petitioner appealed. On direct appeal, this Court

affirmed the petitioner’s conviction, but modified the judgment of the trial court to indicate that the

petitioner was a Range II multiple rapist for purposes of the rape conviction. See State v. Andre L.

Mayfield, No. M1999-02415-CCA-R3-CD, 2001 WL 637700 (Tenn. Crim. App., at Nashville, June

11, 2001), perm. app. denied, (Tenn. 2001). 

On July 13, 2004, the petitioner filed a petition for writ of habeas corpus in the Johnson

County Circuit Court in case number 4434. In that petition, the petitioner argued that: (1) his fifty 1

(50) year sentence is void; (2) his sentence as a multiple rapist on count three (3) is in direct

contravention of Tennessee Code Annotated section 39-13-523(a)(2); (3) his sentence as a multiple

rapist on count five (5) is void because the trial court lacked authority to impose the sentence without

a separate indictment charging the petitioner as a multiple rapist; (4) the trial court lacked the

authority to modify the petitioner’s original sentence from twenty (20) years to fifty (50) years; (5)

his sentence on count five (5) is in violation of Tennessee Code Annotated section 40-20-111

because the trial court failed to expressly state whether the sentence would run concurrent or

consecutive to the other sentences; (6) his sentence on count four (4) is void because the trial court

expressly ordered the sentence to run concurrent to another sentence, but the judgment form states

that the sentences are to be served consecutively; and (7) the petitioner is improperly classified as

a Range II multiple offender. The trial court entered an order on December 8, 2004, denying the

petition for habeas corpus relief. The petitioner filed a timely notice of appeal. 

On appeal, the pro se petitioner presents the following issues: (1) whether the trial court

properly classified the petitioner as a multiple rapist; (2) whether the trial court had the authority to

enhance the petitioner’s sentence to that of a multiple rapist without an indictment charging such

enhancement; (3) whether the trial court lacked the authority to modify the petitioner’s original

sentence; (4) whether the fifteen (15) year sentence for rape is void because the trial court failed to

expressly state whether the sentence would run concurrent or consecutive to the other sentences; and

(5) whether the sentence for aggravated kidnapping under count four (4) is void because the trial
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court ordered the sentence to run concurrent to the sentence for aggravated rape under count three(3),

but the judgment form incorrectly states that the sentences be served consecutively.

Analysis

Standard of Review for Habeas Corpus Relief

On appeal, the petitioner argues that the trial court improperly dismissed the petition. The

State argues that the petition for habeas corpus relief was properly denied because the petitioner

failed to prove that the judgment of the trial court was void or that his sentence is illegal. 

The grounds upon which a writ of habeas corpus may be issued are very narrow. McLaney

v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available only when it appears

on the face of the judgment or the record that the convicting court was without jurisdiction to convict

or sentence the defendant or that the defendant is still imprisoned despite the expiration of his

sentence. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62

(Tenn. 1992).

A habeas petitioner can only attack a judgment that is void on its face and not one that is

merely voidable. State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000). “A void judgment is one in

which the judgment isfacially invalid because the court lacked jurisdiction or authority to render the

judgment or because the defendant’s sentence has expired.” Taylor v. State, 995 S.W.2d 78, 83

(Tenn. 1999). A petitioner has the burden of establishing by a preponderance of the evidence that

the judgment he attacks is void or that his term of imprisonment has expired. State ex rel. Kuntz v.

Bomar, 381 S.W.2d 290, 291 (Tenn. 1964). If a petitioner fails to establish by a preponderance of

the evidence that his conviction is void or his term of imprisonment has expired, he is not entitled

to immediate release. Passarella v. State, 891 S.W.2d 619, 627-28 (Tenn. Crim. App. 1994),

superceded bystatute asstated in State v. Steven S.Newman, No. 02C01-9707-CC-00266, 1998 WL

104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).

A. Multiple Rapist Classification

The petitioner contends that his sentence as a multiple rapist on count three (3) is void and

in direct contravention of Tennessee Code Annotated section 39-13-523(a)(2). Specifically, he

argues that this was his “first rape offense conviction ever, and the statute only applies to a second

or subsequent rape conviction.” He cites State v. Johnson, 970 S.W.2d 500, 505 (Tenn. Crim. App.

1996), to support his argument. The State counters that the petitioner was properly classified as a

multiple rapist. 

Tennessee Code Annotated section 39-13-523(a)(2) defines a multiple rapist as “a person

convicted two (2) or more times of violating the provisions of § 39-13-502 or § 39-13-503, or a

person convicted at least one (1) time of violating § 39-13-502, and at least one time of § 39-13-

503.” Classification as a multiple rapist requires a defendant to serve “the entire sentence imposed
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by the court undiminished by any sentence reduction credits such person may be eligible for or earn.”

Tenn. Code Ann. § 39-13-523(b). 

In State v. Johnson, the defendant was convicted of a rape prior to the enactment of the 1992

statute mandating service of the entire sentence for a multiple rapist. This Court determined that the

1992 statute applied as long as one (1) of the rape offenses at issue was committed after the

enactment of the law. Johnson, 970 S.W.2d at 505. In the case herein, the petitioner was convicted

of one (1) count of aggravated rape and one (1) count of rape, both occurring after the enactment

of the 1992 statute mandating service of the entire sentence for a multiple rapist. The petitioner

clearly qualifies as a multiple rapist as he was convicted of two (2) rape offenses as required by the

statute. The petitioner’s classification as a multiple rapist does not result in a void judgment. This

issue is without merit.

B. Separate Indictment for Multiple Rapist Classification

The petitioner also argues that his sentence as a multiple rapist in count five (5) is void

because the trial court lacked the authority to impose an enhanced sentence classifying the petitioner

as a multiple rapist without a separate indictment specifying and charging that the offense was a

second offense eligible for an enhanced punishment. The State disagrees.

In support of his argument, the petitioner argues that Tennessee Code Annotated section 40-

35-203 requires the State to file a separate indictment specifying and charging the petitioner with

rape as a second offense eligible for an enhancement punishment. Tennessee Code Annotated

section 40-35-203(e) outlines a trial court’s procedures for imposing sentences and provides as

follows:

If the criminal offense for which the defendant is charged carries an enhanced

punishment for a second or subsequent violation of the same offense, the indictment

in a separate count shall specify and charge such fact. If the defendant is convicted

of the offense, then the jury must find that beyond a reasonable doubt the defendant

has been previously convicted the requisite number of times for the same offense.

Upon such finding, the defendant shall be subject to the authorized terms of

imprisonment for the felonies and misdemeanors as set forth in § 40-35-111.

Tenn. Code Ann. § 40-35-203(e). The Sentencing Commission Comments for Tennessee Code

Annotated section 40-35-203 state that an “example of an application of subsection (e)” is found in

Tennessee Code Annotated section 39-17-418, which specificallyprovides for “an enhanced penalty

for third and subsequent offenses” for simple possession or casual exchange of a controlled

substance. Tenn. Code Ann. § 39-17-418 Sent. Comm’n Cmts. In the case herein, the petitioner was

convicted of one (1) count of aggravated rape and one (1) count of rape, in violation of Tennessee

Code Annotated sections 39-13-502 and 39-13-503, respectively. Neither statute proscribes an

enhanced punishment for a second or subsequent offense as required by Tennessee Code Annotated

section 40-35-203. Further, Tennessee Code Annotated section 39-13-523 merely defines a multiple
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rapist as a person convicted two (2) or more times of violating the provisions of the rape statutes,

it does not indicate that a trial court or a jury must determine whether a defendant is a multiple rapist.

The classification is, essentially, automatic upon a defendant’s second conviction for a rape offense.

The petitioner has failed to cite any authority dictating otherwise. We fail to see how a separate

indictment is necessary in order to classify the petitioner as a multiple rapist. Again, the petitioner’s

classification as a multiple rapist does not result in a void judgment. This issue is without merit. 

C. “Modification” of Original Sentence

Next, the petitioner argues that the trial court lacked the authority “to modify the petitioner’s

original sentence from 20 years to 50 years, once the judgement [sic] on the original 20 year sentence

had became [sic] final, and the petitioner was transfered [sic] to the Tennessee Department of

Correction, to start serving the 20 year sentence.” The State contends that there is no defect in the

trial court’s judgment that is “discernable from the record.” 

In 1993, the petitioner pled guilty to three (3) counts of aggravated rape and one (1) count

of aggravated robbery. Pursuant to the agreement, the petitioner was to serve an effective sentence

of twenty (20) years with a thirty percent (30%) release eligibility. However, the Department of

Correction classified the petitioner as a multiple rapist, requiring him to serve his sentence in its

entirety. Therefore, in 1999, the petitioner voluntarily moved to withdraw his guilty plea from 1993

and expressed his desire to go to trial on the offenses with which he was charged. The petitioner

was permitted to withdraw his plea because the petitioner was not eligible for a thirty percent (30%)

release eligibility as a multiple rapist. As a result, the petitioner was tried by a jury as if he had never

entered a plea. The petitioner now essentially argues that the trial court did not have the authority

to entertain his motion for withdrawal of his pleas because his motion was untimely. 

A trial court has the authority to “correct an illegal, as opposed to a merely erroneous,

sentence at any time, even if it has become final.” State v. Burkhart, 566 S.W.2d 871, 872 (Tenn.

1978). This Court has previously determined that judgments setting release eligibility beyond the

outer limits of statutory authority are void. See Dewayne Cathey v. State, No. W2003-00411-CCAR3-CD, 2004 WL 1686869 (Tenn. Crim. App., at Jackson, July 28, 2004), perm. app. denied, (Tenn.

Dec. 20, 2004); William Boyd v. State, No. E1999-02179-CCA-R3-PC, 2000 WL 1661526 (Tenn.

Crim. App. Nov. 6, 2000). In the case herein, the petitioner moved to withdraw his guilty pleas

based on the premise that the sentence he agreed to was, in effect, an illegal sentence. Though the

judgment was final at the time, the trial court had jurisdiction to allow the petitioner to withdraw his

plea because the judgment was illegal and void. The petitioner received a trial and his sentence and

convictions were affirmed on direct appeal. See Andre L. Mayfield, 2001 WL 637700, at 15. While

the petitioner is surely dissatisfied that his sentence was increased from twenty (20) to fifty (50)

years, there is no proof in the record that the judgment is void such that would warrant habeas corpus

relief. This issue is without merit. 
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D. Sentence

The petitioner contends on appeal that the trial court failed “to expressly state how count 5

would run from or with the other counts” and that the judgments are contrary to the stated intent of

the trial court in regard to the manner of service of count four (4). The State argues that the trial

court’s intention as to the manner of service of the sentences is clear from the record. 

The judgments herein reflect that the petitioner was convicted of aggravated kidnapping in

count one (1) and sentenced to fifteen (15) years as a Range II multiple offender. The sentence in

count one was ordered to run concurrent to the sentence in count two (2) and consecutive to the

sentence in count three (3). In count two (2), the petitioner was convicted of aggravated robbery and

sentenced to fifteen (15) years as a Range II multiple offender. The sentence for aggravated robbery

was ordered to run concurrent to the sentence in count one (1) and consecutive to the sentence in

count three (3). In count three (3), the petitioner was convicted of aggravated rape and ordered to

serve twenty (20) years as a multiple rapist. The sentence in count three (3) was ordered to run

consecutive to the sentences in counts one (1), two (2), four (4) and five (5). In count four (4), the

petitioner was convicted of aggravated kidnapping and ordered to serve fifteen (15) years as a Range

II multiple offender. The sentence in count four (4) was ordered to be served concurrent with count

five (5) and consecutive to counts one (1), two (2), and three (3). In count five (5), the petitioner was

convicted of rape and sentenced to fifteen (15) years as a multiple rapist. the sentence in count five

(5) was ordered to be served concurrent with count four (4) and consecutive to counts one (1), two

(2), and three (3). The petitioner was sentenced to a total effective sentence of fifty (50) years. 

The petitioner cites the following language from the transcript as the basis of his complaint:

It’s the judgment oftheCourt that Counts One and Two will run concurrent, one with

the other. They will run consecutive to Count Three. They will run consecutive to

Counts Three and Four, which will run concurrent one with the other. . . . It’s the

intention of this Court to sentence the defendant to the Department of Corrections for

a period of fifty years. 

The petitioner argues that because the trial court failed to state how the sentence in count five (5)

would run and because the stated intent of the trial court conflicts with the judgment forms, the

judgment is void.

We acknowledge that the transcript of the sentencing hearing conflicts with the judgment

forms entered by the trial court. Ordinarily, when there is a conflict between the judgment form and

the transcript, the transcript controls. See State v. Moore, 814 S.W.3d 381, 383 (Tenn. Crim. App.

1991). However, after examining the transcript and the judgment forms, it appears that the trial court

merely misstated the petitioner’s sentence at the sentencing hearing. The trial court ordered the

sentences in counts one (1) and two (2) to run consecutive to the sentences in counts three (3) and

four (4) when the trial court intended to sentence the petitioner to a total sentence of fifty (50) years.

In order to sentence the petitioner to fifty (50) years, the sentences in counts one (1) and two (2) must

be served consecutively to the sentences in counts four (4) and five (5), rather than three (3) and four
The State also argues in a separate issue that “the [petitioner’s] claim that his sentences as a Range II multiple 2

offender were based on invalid judgments of prior convictions render his sentences ‘voidable’ at best.” The petitioner

presented this argument in his original petition, but appears to have abandoned this argument on appeal. As a result, we

choose not to address the issue. 

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(4). As stated above, a habeas petitioner can only attack a judgment that is void on its face and not

one that is merely voidable. Ritchie, 20 S.W.3d at 630. “A void judgment is one in which the

judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment

or because the defendant’s sentence has expired.” Taylor, 995 S.W.2d at 83. Thus, we determine

that even if there were a definitive conflict between the sentences as stated on the judgments and the

language of the transcript, such a conflict would merely render the judgments voidable, and

ineligible for habeas corpus relief. This issue is without merit. 

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Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. 

___________________________________ 

JERRY L. SMITH, JUDGE